Citation:
Robert A. Williams
"The American Indian in Western Legal Thought"
pp. 3-8


Introduction

In August 1246, an assembly of the loyal subjects of the greatest empire the world had ever known - even greater than that of Rome in its Imperial Age - gathered on a plain in Central Asia. One of the few Westerners to witness this gathering of the Mongol Empire, Friar John of Plano Carpini, a pupil of Francis of Assisi, recorded a partial roster of those in attendance: "Duke Jerozlaus of Susdal in Russia and several chiefs of the Kitayans and Solangi, also two sons of the King of Georgia, the ambassador of the Caliph of Baghdad, who was a Sultan, and more than ten other Sultans of the Saracens." Besides these, John noted the presence of at least 4,000 additional envoys from throughout the Mongol Empire, all carrying tribute and gifts of gold.

This throng had gathered under a gigantic tent, "supported by columns covered with gold plates and fastened to other wooden beams with nails of gold," to witness the coronation of the newly elected Great Khan of the Mongols, Guyak, grandson of Genghis Khan. As ruler of the Mongols, Guyak would be sovereign over a vast empire stretching from the shores of the Pacific in China, across all of Central Asia including India, to the Baltic and Black seas, the very borders of Western Christendom.

Imagine the awe and trepidation in the mind of Friar John as he gazed on this awesome spectacle. He himself had witnessed the "many skulls and bones of dead men lying on the ground like dung," marking the long and gruesome trail to Guyak's camp. In his travels eastward across Europe and into Mongol-ransacked Russia, John had collected horrifying accounts of the barbaric practices of the Khan's armies. One such tale related that after a great battle on the River Kalka on the southern steppe, the Mongols laid the defeated Mstislav, prince of Kiev, and the other Russian princes under huge wooden boards. The victors feasted on top of the boards while the Russian princes suffocated to death. Even more horrifying was the fact that the Mongols considered such a brutal but bloodless execution to be a mark of distinction, reserved for the special enemies of noble birth. Mongol priests taught that blood contained the individual's spiritual essence, and thus to spill a noble's blood would be to defile the ground on which it fell. Death by suffocation, or drowning, therefore, was the privileged form of execution among the Mongols. For instance, disloyal members of the Khan's own family (of either sex; the Khans did not discriminate) were rolled up in carpets and then thrown into a nearby body of water to drown. Sometimes, to add emphasis to some particular point, more elaborate measures were devised. Guyak himself, shortly after his election, executed one of his principal adversaries, the sorceress Fatima, by sewing closed all her bodily orifices, wrapping her in a sheet of felt, and throwing her into a river.

The horrors that Friar John had seen and heard about on his journey must have weighed heavily on his mind as he contemplated his portfolio as ambassador on behalf of Western Christendom. The sixty-four-year-old Franciscan missionary spoke no Oriental languages and possessed little international diplomatic experience. Yet he had been selected by the new pope in Rome, Innocent IV (1243-1254), for a most important mission. He was to deliver two "gifts" in the form of letters written by Innocent to the Great Khan of the Mongols.

These letters, at least in the mind of their papal author, who had been a canon lawyer of significant repute before he assumed St. Peter's chair, contained messages of utmost import to both the Christian and the Mongol empires. Christian Europe had grown increasingly alarmed at the rapacious westward advance of the Khan's armies. First Moscow, then Kiev - in fact, virtually all of Christian Russia - had fallen under the yoke of Mongol domination and tribute. Worse, the Mongols had launched brief but devastating forays into European Christendom: Poland, Moravia, even as far west as Austria and Hungary. The Mongol advance had been halted only by the death of Ugedy Khan, Guyak's predecessor, and subsequent rivalry among the Mongol princes over the question of succession. Guyak's election, however, had ended the distracting dissension in the empire. Genghis Khan's unfulfilled dream of a world empire could now be singlemindedly prosecuted by his grandson, Guyak, supreme khaghan (khan of khans) of the Mongols.

Pope Innocent was especially concerned about a united Mongol military renascence. In the summer of 1244, he had been forced to move the papal seat from Rome to Lyons following the invasion of Italy by the excommunicated Hohenstaufen emperor, Frederick II. This conflict was the latest extension of a debate between the papacy and the Holy Roman Empire that had been carried on since the investiture controversy of the eleventh century. The Germanic imperial successors of Charlemagne refused to accept the doctrine proclaimed by popes since Gregory VII (1073-1085) that the successors of St. Peter exerted universal rule over all of Christendom, including emperors and kings. Frederick II's grandfather, Frederick Barbarossa, had gone to war against the papacy over the issue of Rome's secular jurisdiction, and now Barbarossa's grandson was following the Hohenstaufen tradition.

Innocent, well aware that Western Christendom was particularly vulnerable at this time owing to this internal dissension, had sent Friar John to discover the Great Khan's plans. The paper letters carried by the ambassador-priest were quite blunt in asking Guyak his intentions toward Christendom. What must have worried John even more was the boldness with which the pope expressed his own intentions toward the Khan and his subjects.

The first of Innocent's letters sought to instruct the Mongol Khan in the rudiments of enlightened Christian doctrine. God, the Father of all men, with "unutterable loving-kindness," Innocent wrote to the Mongol, had sent from the lofty throne of heaven down to the lowly region of the world "His only-begotten Son," Christ the Savior. Consubstantial with God himself, this Son had been "conceived by the operation of the Holy Ghost in the womb of a fore-chosen virgin" and had revealed himself in a form visible to all men.

As explained by the canon lawyer-pope, the purpose of this strange and miraculous assumption of a human form by God was to make possible the Son's sacrifice "as a victim for the redemption of mankind." After dying on the cross, but before "rising from the dead and ascending into heaven," this Savior-Son designed a vicar on earth. To this vicar, Peter, had been "committed the care of all souls." Innocent as pope was now the divinely appointed successor to Peter's vicariate. According to Innocent, the Son of God bequeathed to Peter

the keys of the kingdom of heaven by which he and, through him, his successors, were to possess the power of opening and of closing the gate of that kingdom to all. Wherefore we, though unworthy, having become, by the Lord's disposition, the successor of this vicar, do turn our keen attention, before all else incumbent on us in virtue of our office, to your salvation and that of other men.

Having informed the Khan that Innocent, as pope, was bound "to lead those in error into the way of truth," this first paper letter concluded by introducing its bearer, Friar John, who would further inform Guyak of the truths of the Christian faith.

The second letter delivered by John on behalf of Innocent reproached Guyak and the Mongol armies for "stretching out your destroying hand to more distant lands" and thereby violating the divine natural law. This natural law, wrote Innocent, united all men, even "irrational animals," with the "very elements which go to make up the world machine." The pope enjoined the Khan to desist in this "breaking the bond of natural ties" by ceasing his persecution of Christians and to "conciliate by a fitting penance the wrath of divine Mejesty." Innocent concluded his epistles with a dire warning:

[N]or should you be emboldened to commit further savagery by the fact that when the sword of your might has raged against other men Almighty God has up to the present allowed various nations to fall before your face; for sometimes He refrains from chastising the proud in this world for the moment, for this reason, that if they neglect to humble themselves of their own accord He may not only be longer put off the punishment of their wickedness in this life but may also take greater vengeance in the world to come.

Fortunately for Friar John, the Mongols' notions of international law extended immunity to an ambassador of a foreign nation. Upon his return to the see of St. Peter, John reported that Guyak had listened intently to the pope's message and had asked only that John deliver a return response. The Great Khan's letter asked the pope to "come at once to serve and wait upon us. At that time, I shall recognize your submission." As for Innocent's argument that he as pope was God's representative on earth, Guyak retorted that "the eternal God has slain and annihilated these lands and peoples, because they have neither adhered to Genghis Khan, nor to the Khagan, both of whom have been sent to make known God's command." According to the Khan's view of things, how could Innocent be certain he was God's agent on earth? The Mongols' successes at war, Guyak argued, could not have occurred if "contrary to the command of God."

This response might have indicated to Innocent that perhaps his own arguments needed refinement. But in a followup letter to Guyak, Innocent warned that he as pope was now even more upset about the condition of the souls of the Khan's subjects, for they could no longer claim ignorance of the true faith on Judgment Day, having been visited by the pope's priestly envoy. As God was losing patience with the Mongols, he was likely to inflict his wrath on them at any moment.

But history records that neither man ever was able to test his respective vision of truth on the field of battle with the other.

As Pope Innocent's letters to the Great Khan of the Mongols signify, the "West" has sought to impose its vision of truth on non-Western peoples since the Middle Ages. In seeking the conquest of the earth, the Western colonizing nations of Europe and the derivative settler-colonized states produced by their colonial expansion have been sustained by a central idea: the West's religion, civilization, and knowledge are superior to the religions, civilizations, and knowledge of non-Western peoples. This superiority, in turn, is the redemptive source of the West's presumed mandate to impose its vision of truth on non-Western peoples.

This book arose out of a desire to retrieve and reconstruct the emergence of this idea of the West's mandate to conquer the earth, and to examine its inaugural applications in the New World. My basic argument throughout the book is that law, regarded by the West as its most respected and cherished instrument of civilization, was also the West's most vital and effective instrument of empire during its genocidal conquest and colonization of the non-Western peoples of the New World, the American Indians.

The West's conquest of the New World was a many-facted enterprise. Gold, sugar, religion, and innumerable other reasons motivated Europe's invasion of the Americas beginning in the late fifteenth century. But above all, commencing with Christopher Columbus's royal contract with the Spanish Crown to discover a westward spice route to the Indies, Europe's conquest of the New World was a legal enterprise. The archives of Western colonialism in the Americas reveal a profusion of laws that were drafted, enacted, obeyed, ignored, or defied in pursuit of Europe's will to empire in the New World. While the colonizing nations of Europe interpreted and applied their presumed mandates in the New World in radically divergent ways, each assumed that law was an appropriate instrument of empire in imposing its particular vision of truth on the American Indian.

It is in this context of a profusion of laws legitimating, energizing, and constraining the Europeans' will to empire in the New World that the American Indian emerges as a distinct problem in Western legal thought. The many laws and legal documents promulgated by Europeans to regulate their conquests in the New World reveal the existence of a similar profusion of legal discourses about the American Indian. These discourses of conquest are traceable in commonly grouped and constantly supplemented statements and themes focused on the problem of defining the American Indian's rights and status under European colonizing law. The colonizing legal discourses were deployed by rival European colonial nations, the contending forces within those nations, and the European colonists. All sought power over the vision of truth that would be imposed in the New World. All relied on law as a vital supplement to their respective visions of empire in the Indian's America. In the European's conquest and colonization of the American Indian, law and legal discourse most often served to redeem the West's genocidal imposition of its superior civilization in the New World.

In analyzing the relation of Western law and legal discourse to the West's conquest of the American Indian, I have limited my study to the principal New World colonizing nations: Spain, England, and the United States. Because these three nations are primarily responsible for tribalism's near-elimination from the Americas, I have sought to focus on the important roles played by their laws and legal discourses of conquest in imposing the West's vision of truth in the New World.

Given the narrow scholarly training that a lawyer receives and the broad task of understanding more precisely the role of law and legal discourse in the West's conquest of the American Indian, I have employed several other strategies of limitation. I have constructed the book's narratives of the history of the New World's three principal colonial powers and their colonizing laws and legal discourses by relying largely on the more widely cited secondary sources for a particular period. Further, the principal story in each of the three parts of the book focuses on the early period of contract, during which the question of the legal rights and status of the American Indian was most vigorously debated and contested in the respective processes of Spanish, English, and United States colonization.

I have no doubts that the selective nature of the sources and periods studies has resulted in inadequate commentary on certain nuances of interpretation for a particular historical event or personality, neglected scholarly debates, missed documents, and other certain flaws. But my intent has not been to describe the total history of Western law and colonialism in the New World. Rather, I have merely sought to situate the role of Western law and legal discourse in the West's will to empire in the New World. For such purposes, a moderately reliable narrative framework is all that I required for deciphering the traces of the emergence and descent of central motifs in the separate, nationalized laws and legal discourses of Spanish, English and United States New World conquest.

The book's tripartite discussion of the central organizing ideas of Spanish, English, and United States legal colonizing thought also illuminates the tracings of broader themes and strategies. Power, in its most brutal mass-mobilized form as will to empire, was of course far more determinate in the establishment of Western hegemony in the New World than were any laws or theoretical formulations on the legal rights and status of American Indians. But the exercise of power as an efficient colonizing force requires effective tools and instruments. As this book argues, law and legal discourse were the perfect instruments of empire for Spain, England, and the United States in their colonizing histories, performing legitimating, energizing, and constraining roles in the West's assumption of power over the Indian's America.

The legitimating function of law and legal discourse in the major Western colonial powers' conquests in the New World extended far beyond providing passive defenses and apologies for the exercise of colonizing power. The immunizing function of law and legal discourse also served as an effective tool for dismissing or deflating demands for further justifications or examinations of the colonizing enterprise. In Western colonizing discourse, the thin veneer of law and legal argumentation does not obscure so much as add value to what otherwise might be regarded as an underlying baseless substance.

In addition to its usefulness in legitimating the exercise of colonizing power, law and legal discourse can affect the exercise of colonizing power, at times arguing effectively for its mobilization, at times arguing effectively for its restraint or its channelization toward the hierarchical goals of a sovereign will. Law's capacity for energizing and constraining social conduct was amply appreciated by the colonizing sovereigns who desired America. Colonization of the New World was presumed by the West to be subject to the rule of law. The question in Western colonizing theory (at least before the twentieth century) was rarely whether power ought to be exercised over savage tribes. Rather, debates almost always focused on which power center within the Western colonizing polities would control that power. These debates and the ways in which law served to energize and constrain the exercise of power in the New World are the principal objects of study in this book.

Again, these legitimating, energizing, and constraining roles of law and legal discourse are only tentatively suggested at various points throughout the book. A more elaborate, refined theory of the relation between law and power manifested as a will to empire awaits articulation on the foundations of a knowledge of colonizing discourse that has barely begun to emerge out of a non-Western history of decolonization. If this book changes, alters, or adjusts ideas about the need for constructing a new hermeneutical foundation for the interpretation of the American Indian's rights and status in Western legal thought, if it destabilizes beliefs about the ultimate justice of the West's present-day hegemony over the Indian Nations of the Americas, then the idea behind it has been redeemed. For this book is but a small part of the global effort on the part of indigenous peoples to bring into existent a different vision of the West's will to empire in the New World, a vision that emerges out of the end of the history of the Indian's colonization in Western legal thought.